V.S. Palanikumar vs The Revenue Divisional Officer and Another

Kailasam, J.—This appeal is filed by the unsuccessful candidate for the post of Karnam before the Revenue Divisional Officer.

The last incumbent died on 29th May 1949. The son of the last incumbent was registered as the minor holder on 14th March 1950 and the Appellant was appointed as Deputy to the minor. Applications were called for appointment to the post of Karnam, after the Supreme Court held that the provision as to appointment on the basis of hereditary is not sustainable. On 29th June 1966, an order was passed, directing the Appellant to continue as the Karnam. On 8th December 1966, the Appellant was placed under suspension for certain irregularities committed by him in the exercise of his duties as Karnam. The order of suspension was confirmed by the District Revenue Officer, on 21st December 1966. The Appellant took up the matter to this Court by way of Writ Petition and the Writ Petition was allowed on 7th March 1967 and the matter was remanded to the District Revenue Officer for fresh disposal. The charges regarding the several irregularities committed by the Appellant are still pending.

While so, applications were called for the appointment for a long term Karnam for the village on 15th March 1967. The Appellant as well as the other candidates were interviewed on 29th July 1968 and 5th August 1968. On 18th August 1968, the second Respondent herein was appointed to the post of Karnam on a temporary basis. Within a month after the appointment, the Appellant filed the writ petition on 28th August 1968, out of which the present writ appeal arises.

The writ petition was admitted and a rule was issued. Act XX of 1968 though received the assent of the Governor on 8th October 1968, came into force on 1st December 1968, the date notified by the State Government, u/s 1(3) of the Act.

The point that was raised before the learned single Judge is that as a result of Act XX of 1968 all proceedings, either by way of suit, appeal, application, revision or other proceedings taken under the Act had abated and that the writ petition is not maintainable. Reliance is placed on section 2 of Act XX of 1968. Section 2(1) while repealing the Madras Proprietory Estates'' Village Service Act, 1894 (Madras Act II of 1894) and the Madras Hereditary Village-Offices Act, 1895 (Madras Act III of 1895), provides under Sub-clauses (i) and (ii) therein, as follows:

(2) (i) No legal proceedings or remedy in respect of any right, privilege, obligation or liability acquired, accrued or incurred under the Acts repealed by Sub-section (i) shall be instituted, continued or enforced.

(ii) Every suit, appeal, application, revision or other proceedings instituted, made or taken under the Acts repealed by Sub-section (1) before the date of the commencement of this Act and pending on that date shall abate.

(3) Every holder of a village office, appointed under the Acts repealed by Sub-section (1), shall notwithstanding the repeal of the said Acts, continue to hold office subject to such rules as may be made under the proviso to Article 309 of the Constitution.

While Section 2(2)(i) bars all legal proceedings remedy in respect of any right, privilege, obligation or liability acquired, accrued or incurred under the Acts repealed by instituting or continuing or enforcing such proceedings, Sub-section (2) (ii) provides that all suits, appeals, applications, revision or other proceedings made or taken under the repealed Acts before the date of the commencement of the Act and pending on that date shall abate. A reading of Section 2(2)(i) and 2(2)(ii) will make it clear that while Clause (2) (i) bars all legal proceedings or enforcement of obligation arising under the Act, Section 2(2)(ii) provides that all suits, appeals, applications, revisions and other proceedings already instituted shall abate. Section 2, Sub-section (3) saves the appointments made under the Act and provides that every holder of a village office shall notwithstanding the repeal of the Acts continue to hold office subject to such rules made under the proviso to Article 309 of the Constitution.

It is contended by Mr. Parasaran, learned Counsel for the Appellant that a reading of Section 2, Sub-sections (2) (i) and (ii) will show that all suits, appeals, applications, revision, or other proceedings shall abate and Sub-section (3) to Section 2 will have the result of saving the appointments which had become final under the Act, i.e., this Sub-section would not cover cases of appointments made, but had not become final by the fact of appeal or a revision not having been concluded under the Act. It is also contended that under Sub-section (2) to Section 2, Clause (ii), the entire matter which starts from an application, whether it is a pending as an application or appeal or revision would abate as an appeal and revision is a continuation of the application.

In the view which we are taking, it is unnecessary, to decide this question. It has been held by a Bench of this Court in Lakkaju Satyanarayana Vs. Majati Venkatarattamma and Another, that the moment a rule nisi is issued calling for the authority to send for the use of the Court all the records with all things touching the same as fully and perfectly as they have been made by the authority, it is obvious that the decision in the appeal is again set at large, as it lost its finality the moment the Court issued the rule nisi. Applying the above principle, as in this case the rule nisi had been issued, the proceedings by way of an application before the Revenue Divisional Officer should be deemed to have been pending. When this conclusion is reached Sub-section (2), Sub-clause (ii) will come into operation and the application, which is pending shall abate. The proceedings before the Revenue Divisional Officer which is the subject matter of the writ petition will also abate. This will result in the entire matter being left open for the authorities to make a fresh and final appointment. It may also be relevant to note that the appointment of the second Respondent was made only temporary, subject to a final appointment that may be made by the authorities subsequently. In holding that the proceedings before the Revenue Divisional Officer is still pending because of the issue of the rule nisi, we have to hold that the entire application before the Revenue Divisional Officer has become abated.

It is unnecessary for us to express any opinion on the comparative merits of the candidates as it is likely to prejudice one or other of the parties. We are unable to agree with the view taken by the learned Judge that the writ proceedings cannot be continued in view of the provisions of Section 2 , Sub-clause (2) of the Act. Sections 2(2)(ii) and 2(3) relate only to proceedings under the Acts repealed and not to writ proceedings, which are not governed by the proceedings under the Act. The jurisdiction of this Court under Article 226 of the constitution, to correct apparent errors, has not been and could not be taken away by the enactment. The writ petition is properly effective and can be decided by this Court. We are also unable to accept the view of the Judge that this Court cannot issue an order, which according to the learned Judge cannot be followed by the lower hierarchy of Tribunals.

In this view, we allow the writ appeal, giving effect to the provisions of Section 2, Sub-clause (2) and hold that the application before the Revenue Divisional Officer have abated. The authorities are at liberty to take steps to notify the vacancy and to fill it upon a permanent basis. The authorities will also be at liberty, if they are satisfied, in the interests of administration to take steps to terminate the temporary appointment of the Appellant and such other steps as are necessary. There will be no order as to costs. The writ will be ordered accordingly.